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  • Writer's picturePeter Lamont, Esq.

Law Against Discrimination Does Not Apply When You Can't Do the Job

The New Jersey Law Against Discrimination (LAD) is a crucial piece of legislation that aims to protect employees from discrimination on the basis of their race, sex, religion, age, disability, and other protected characteristics. The LAD is a powerful tool that helps employees seek legal recourse if they face any form of discrimination in the workplace. However, as with any legal provision, there are limitations to the protection it offers. One such limitation is the employer's right to terminate an employee who is unable to perform the job duties.

Fowler v. AT&T

The case of Fowler v. AT&T, 19 F. 4th. 292 (3rd Cir. 2021) highlights this limitation. In this case, Kathleen Fowler, a thirty-year veteran of AT & T and an epileptic breast cancer survivor, sued her former employer for age and disability discrimination. She claims that AT & T discriminated against her twice. First, it placed her on "surplus status" in January 2016, effectively giving her 60 days to find a new job or be terminated. Second, after she found a new job within AT & T, she was again placed on surplus status in October of that same year and ultimately terminated. In addition, she argues that the company failed to accommodate her disabilities in her new position.

The Court in Fowler pointed out that, in order to succeed in a disability discrimination claim, plaintiff must “show she was qualified for her position; she must have the requisite skill, experience, education, and other job-related requirements of the position … that with or without reasonable accommodation she can perform the essential functions of that position … (i.e., she must possess) the minimal objective qualifications for the position.”

When plaintiff was seeking an accommodation, due to her chemotherapy treatments, she stated, in various e-mails and depositions, “I did not have the skill set for that position … she wasn’t qualified for the position because of the skill set required … I didn’t fit the position … (and) she was not suited or qualified for the position.”

The court noted that where plaintiff “conceded her lack of qualifications, post-hoc assertions by her lawyers during the litigation that she was in fact qualified, without more, are not enough to create a genuine dispute of material fact that stops summary judgment.”

The case was heard in the Third Circuit Court of Appeals, which found that AT&T had not violated the LAD. The court held that although the LAD is generally liberally construed in favor of the employee, an employer still has the right to terminate an employee who is unable to perform the job duties. In this case, the court found that Ms. Fowler was terminated because he was unable to perform his job duties adequately, and not because of his race.

More specifically, the Court concluded as follows:

"We are sympathetic to Fowler's situation. But while it is deeply unfortunate for a sixty-year-old cancer patient to lose her job, it is not necessarily a violation of employment discrimination laws. Those laws do not prohibit employers from terminating employees in protected classes when the termination is a part of a neutral reduction in force. And employers are not required to retain or accommodate employees who are not qualified for their jobs and could not perform them even with reasonable accommodations. When AT & T placed Fowler on surplus status in January 2016, she suffered an adverse employment action. But, her surplus selection was then a neutral reduction in force at AT & T, and Fowler has failed to provide sufficient evidence to show that its neutral process was mere pretext for age or disability discrimination. Attempting to assure she had a job, Fowler sought and accepted a position elsewhere at AT & T. But, by her own admission, she was not qualified for her new position. Accordingly, we conclude that none of Fowler's claims can survive summary judgment and affirm the judgment of the District Court."

Employer Impact

The court's decision in Fowler v. AT&T highlights the importance of the employer's right to terminate an employee who cannot perform the job duties. This right is essential to ensure that the employer can maintain a productive workforce and meet the needs of their customers or clients. However, it is important to note that the employer's right to terminate an employee must be exercised in good faith and not used as a pretext for discrimination.


In conclusion, the case of Fowler v. AT&T highlights the importance of the employer's right to terminate an employee who cannot perform the job duties. This right must be exercised in good faith and not used as a pretext for discrimination. The LAD provides a powerful tool for employees who experience discrimination in the workplace, but it is also important to recognize its limitations. It is essential that employees understand their rights under the LAD and seek legal recourse if they experience discrimination in the workplace.

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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.


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